Sunshine Week: In Delaware, large fees treated the same as request denial

Posting on Internet suggested as way to keep records costs down

Mar. 16, 2014

Rehoboth Beach charges 50 cents per page to copy public records. State law permits municipalities to charge more than the state standard of 10 cents per page after the first 20 pages, if they have their own set of rules which are within reason. / Staff photo by Joe Lamberti

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The Delaware Attorney General’s Office will host a FOIA Roadshow, aimed at educating the public, government officials and employees about their rights and responsibilities, at 10 a.m. Tuesday, March 25, in the Sussex County Council Chambers in Georgetown.

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BETHANY BEACH — In Delaware, citizens charged excessive or prohibitive fees for public documents can appeal the decision the same way they might if they were denied a records request.

For municipalities, the appeal would go through Delaware’s Attorney General’s Office, and for state agencies it would go through the Chief Deputy Attorney General’s Office. From there, either the citizen or public body could appeal the office’s decision to the Superior Court.

John Flaherty, president of the Delaware Coalition for Open Government, said one way to avoid conflicts about fees would be to put documents online.

“I think ultimately the more municipalities and government agencies can put these documents on the Internet, that would pretty much solve the issue of copying fees and administrative overhead,” he said.

Deputy Attorney General Jason Staib said that looking ahead, what administrative fees municipalities charge could become a more contentious issue in Delaware. While state agencies have rules, he said hypothetically a town could charge an unreasonable fee for the work to gather documents.

“What I think we’re seeing more and more often are disputes about the administrative fees and what’s a reasonable fee,” Staib said. “That will have to be resolved by case law.”

The Attorney General’s Office has issued multiple opinions regarding fees through the years.

One opinion, issued Dec. 31, found 50 cents per page to copy public records to be too much for the city of Wilmington to charge. Rehoboth Beach also charges 50 cents per page. State law permits municipalities to charge more than the state standard of 10 cents per page after the first 20 pages, if they have their own set of rules which are within reason.

In this case, the decision was in favor of the citizen because Wilmington had not approved or adopted Public Access Rules of its own. Rehoboth Beach adopted its current policy on May 17.

A June 2010 opinion said it was appropriate for the town of Ocean View to charge $1,875 for a request for the mayor’s town-related emails from his personal computer, including deleted emails in CD form. The opinion said the amount was justified because the town did not have the resources to duplicate the requested records, and needed to hire an outside contractor, making the citizen liable for the costs.